Should Portland amend Flood Hazard Areas Code to comply with Federal Emergency Management Agency National Flood Insurance Program Pre-Implementation Compliance Measures…

The City of Portland ordains.Section 1. The Council finds:Portland Permitting & Development (PP&D) promotes safety, livability, and economic vitality through efficient and collaborative application of building and development codes.PP&D administers Portland City Code Chapter 24.50 – Flood Hazard Areas.The City is required to comply with Federal Emergency Management Administration (FEMA) National Flood Insurance Program (NFIP) requirements related to development in flood hazard areas so that affordable flood insurance is available to residents and property owners and federal disaster relief funding is available to the City.Under Section 7 of the federal Endangered Species Act (ESA), FEMA is required to consult with the US Fish and Wildlife Service or the National Marine Fisheries Service (NMFS) when any action FEMA carries out, funds, or authorizes may affect a listed endangered or threatened species or adversely modify the habitat of such species.In 2009, various environmental groups sued FEMA, alleging its Oregon floodplain development rules did not protect listed endangered species, including salmon and steelhead.A settlement agreement was reached in 2010, and FEMA initiated formal consultation with NMFS in July 2011 with the submittal of a Programmatic Biological Assessment on the NFIP for listed species and their critical habitat.On April 4, 2016, NMFS completed its analysis of the effects of the NFIP on species listed as threatened or endangered under the ESA and issued a Biological Opinion (BiOp).In the BiOP, NMFS directed FEMA to make changes to the NFIP in Oregon to ensure that FEMA’s flood insurance program complies with the ESA and will not result in jeopardy to protected salmon and steelhead or to their critical habitat. The BiOp included a Reasonable and Prudent Alternative (RPA) to NFIP performance standards that, if implemented, will avoid continued jeopardy for the listed species and habitat described in the opinion.In October 2021, FEMA published a draft implementation plan for Oregon, titled “Oregon Implementation Plan for NFIP-ESA Integration,” that outlines changes to the NFIP program based on the BiOp and recommendations made in the RPA.Local compliance with FEMA’s updated NFIP program will be required in Portland to maintain access to FEMA’s federally-backed flood insurance and disaster relief funds for Portland residents and businesses.It is anticipated that FEMA will require jurisdictions to achieve compliance with the updated NFIP program 18 to 24 months after its National Environmental Policy Act (NEPA) review is completed. The NEPA review is estimated to be completed in early 2026.Since 2016, several bureaus have been working together to craft a citywide strategy and response to the BiOp. The bureaus developed a five-year flood management update workplan in 2019. In 2025 the workplan was extended for an additional five years. The workplan includes a variety of regulatory changes across multiple chapters of City Code that are expected to be implemented in phases to comply with FEMA’s final implementation plan.The City worked with FEMA while developing the workplan and began the work before the final FEMA implementation plan was released because: (a) existing policies support the work; and (b) completing the breadth of regulatory and programmatic changes needed to achieve compliance with the updated NFIP requirements will take a significant amount of time.In October 2023, the Council amended the zoning code and building code as outlined in the City’s workplan. The amendments represented the second implementation phase of the long-term compliance measures. The amendments increased the requirements for flood storage compensation volume needed to offset floodwater displaced by soil or structures placed below the 100-year flood elevation in the Columbia River, Willamette River Central and South Reach, and Fanno Creek Flood Zones. The amendments established areas where the ratios of flood storage compensation volume are required to be at least twice, one and a half times, or equal to the volume of floodwater displaced by the placement of fill or structure based on the distance of the development relative to the source of flooding. These changes better align City regulations with the BiOp’s recommendations.In order to comply with FEMA’s final implementation plan, the City’s workplan anticipates that future projects and Code amendments will be undertaken to modify the flood storage compensation requirements in the City’s Flood Zones that were not addressed in the October 2023 amendment.In a July 15, 2024, letter, FEMA notified the City of additional required changes to the NFIP called Pre-Implementation Compliance Measures (PICMs). The PICMs are intended to ensure the survival of threatened or endangered species in compliance with the ESA and are expected to be in effect until the final implementation plan is completed and long-term compliance measures are adopted to replace the PICMs. FEMA presented three PICM compliance pathways: (a) adopt model ordinance requirements, (b) adopt permit-by-permit habitat assessment requirements, or (c) prohibit development in the 100-year flood hazard area.FEMA required the City to notify FEMA of their selected PICM pathway by December 1, 2024. The City notified FEMA in a November 2024 letter that the City’s PICM compliance strategy would be to adopt the PICM model ordinance requirements in those areas of the FEMA 100-year floodplain where the long-term compliance measures have not already been applied. The PICM requirements will apply in the Crystal Springs Creek Flood Zones; Johnson Creek Flood Zones; Tryon Creek Flood Zones; Willamette River North Reach Flood Zones; and areas with Heavy Industrial (IH), General Industrial 2 (IG2), or General Employment 2 (EG2) zoning within the Columbia River, Willamette River Central and South Reach, and Fanno Creek Flood Zones.The PICM model ordinance regulations prohibit a net loss in three proxies for natural floodplain function: flood storage habitat, water quality through stormwater management, and vegetated habitat through tree preservation requirements. In addition, the PICMs require planting of natural vegetation in an area equal to five percent of the new development area within 170 feet of the Ordinary High Water Mark within the 100-year flood hazard area.To prevent a net loss of flood storage, the PICM regulations will require flood storage compensation for the placement of fill or structure below the 100-year flood elevation. It establishes areas where the ratios of flood storage compensation volume are required to be at least twice or one and a half times the volume of floodwater displaced due to the placement of fill or structure based on the distance of the development relative to the source of flooding.To prevent a net loss in water quality, the PICM regulations will require that development within the 100-year flood hazard area meet the requirements of the City’s Stormwater Management Manual. The Stormwater Management Manual has been reviewed by Oregon DEQ and deemed to comply with the requirements of the Clean Water Act.To prevent a net loss of vegetative habitat, the PICM regulations will require tree replacement within the 100-year floodplain. Removal of trees six inches in diameter at breast height or larger must be replaced by trees planted in the 100-year flood hazard area at ratios that vary from at least three trees for every tree removed to at least six trees for every tree removed based on the size of the tree removed and the location relative to the source of flooding.Mitigation required to meet the no-net-loss requirements described above must be implemented within one year of any loss in the proxies for natural floodplain function to retain the minimum mitigation ratios. The mitigation required must be increased 25 percent each additional year that the corresponding mitigation is delayed.To provide more certainty for property owners, this ordinance allows a project with an application for a building or development permit for development approved by an Environmental Review, Greenway Review, Land Division, Conditional Use Master Plan, Planned Development Review, or River Review land use decision that has not expired to vest in the PICM requirements in effect on the date the land use application was filed. A building permit must be issued before the expiration of the final land use decision or within 10 years of a final land use decision, depending on the type of land use decision. Early assistance meetings do not meet the requirement for vesting.The City has worked to ensure that compensatory flood storage mitigation is available via third parties on the Willamette River. Mitigation banks are limited. Additional sites along the Willamette River have been identified as potential future mitigation banks to provide compensatory storage for Title 24. However, they are not currently available due to long lead times; complexity; sequencing of funding, design, construction, and long-term management; and federal and state regulatory approvals for mitigation bank development. The City recognizes the importance of mitigation banking to the success of long-term ESA compliance measures. The City continues to dedicate staff and pursue funding to work through these issues to make comprehensive mitigation banks available within FEMA’s expected compliance deadline and beyond.As described above, this ordinance amends Title 24, the City’s Building Regulations Code. This ordinance is not a land use decision and does not implement any Comprehensive Plan or Statewide Planning Goal. The Council finds that, while there are policies in the City’s Comprehensive Plan generally related to floodplain management, there is no clear or direct connection between the Comprehensive Plan and Title 24 or this ordinance’s changes to Chapter 24.50. The Council finds that Title 33 implements the Comprehensive Plan policies related to floodplain management.FEMA has directed that the PICM requirements be adopted as soon as possible but no later than July 31, 2025.The City acknowledges that the proposed PICM amendments represent temporary measures, and the Council anticipates adopting long-term compliance regulations as required to comply with federally mandated deadlines.NOW, THEREFORE, the Council directs:Amend City Code Chapter 24.50 as shown in Exhibit A as amended, effective July 31, 2025.Section 2. The Council declares that an emergency exists because the City must meet FEMA’s July 31, 2025, implementation deadline. The Council hearing was postponed to July 17, 2025, to accommodate additional time for public input through the legislative process.; therefore, this Ordinance shall be in full force and effect from and after its passage by the Council.